Opinion
No. 01-03-00374-CV
Opinion issued May 19, 2005.
On Appeal from County Civil Court at Law Number One, Harris County, Texas, Trial Court Cause No. 775,331.
Panel consists of Justices NUCHIA, JENNINGS, and ALCALA.
MEMORANDUM OPINION
Appellants, Paul Hoefker and Wilbanks Hoefker, P.C. (together "Hoefker"), challenge the trial court's final judgment awarding appellee, Victor S. Elgohary, attorneys fees and imposing a fine against Hoefker. In four issues, Hoefker contends that the trial court erred in imposing death penalty sanctions, awarding Elgohary attorneys fees in the amount of $8,750, and imposing a fine against Hoefker in the amount of $1,000. We affirm in part and reverse and remand in part.
Factual and Procedural Background
This appeal arises out of an underlying lawsuit filed by Elgohary against William Uhlemeyer, who was represented by Hoefker, for breach of contract. Elgohary served Uhlemeyer with interrogatories, requests for production, and requests for admission. Finding Uhlemeyer's answers and responses inadequate, Elgohary filed a motion to compel, which was heard by the trial court on December 5, 2002. At the hearing, the trial court ordered Uhlemeyer to answer certain interrogatories, modify some of his answers and objections, and generally instructed Uhlemeyer to answer Elgohary's discovery requests. Contending that Uhlemeyer did not comply with the court's December 5 order, on Thursday, February 6, 2003, Elgohary filed a second motion to compel and served Uhlemeyer with a notice setting the motion for hearing on Monday, February 10, 2003. In this motion, Elgohary requested that the trial court compel Uhlemeyer to provide adequate discovery responses, strike Uhlemeyer's pleadings, and order Uhlemeyer to pay $800 for expenses incurred in filing the motion to compel.
The underlying lawsuit was styled Victor S. Elgohary v. William Uhlemeyer, No. 775,331, pending in the County Civil Court at Law Number One, Harris County, Texas, the Honorable R. Jack Cagle presiding. Following the incidents giving rise to this appeal, Uhlemeyer replaced Hoefker with a new attorney.
After receiving the notice, on February 6, 2003, Hoefker sent Elgohary's counsel a fax demanding that the hearing be reset, instructing Elgohary's counsel to "read the rules," and citing a local rule that applied to motions set for submission. On Sunday, February 9, 2003, Hoefker sent Elgohary's counsel a second fax, again requesting that the hearing be reset and attaching a letter from the court coordinator of the County Court at Law Number Three of Brazoria County, stating that Hoefker was required to attend a hearing in another case in Brazoria County on February 10.
Elgohary's counsel attended the February 10 hearing on his second motion to compel without Hoefker. At the beginning of the hearing, Elgohary's counsel advised the trial court of Hoefker's February 6 and February 9 requests to reset the hearing, and the trial court permitted Elgohary's counsel to proceed. Elgohary's counsel argued that Hoefker had still failed to adequately respond to his discovery requests. The trial court granted Elgohary's second motion to compel, struck Uhlemeyer's pleadings, entered a final judgment in favor of Elgohary, and awarded Elgohary attorneys fees and court costs.
On February 12, 2003, Uhlemeyer filed a motion for new trial and motion to set aside the February 10 order and judgment. In this motion, Uhlemeyer asserted that he did not receive timely notice of the February 10 hearing and that his attorney could not attend the hearing because he had to attend a hearing in Brazoria County. At a hearing on March 10, 2003, the trial court granted Uhlemeyer's motion for new trial, set aside the February 10 order and judgment, and reinstated Uhlemeyer's pleadings.
At the March 10 hearing, the court also considered a motion for sanctions filed by Elgohary. In his motion, Elgohary alleged that Hoefker "proffered false testimony" and "demonstrated a pattern of discovery abuse." Elgohary requested that the court award monetary sanctions, strike Uhlemeyer's pleadings, and dismiss the case with prejudice. Elgohary specifically requested $8,750 in attorneys fees that he stated he had expended "in the prosecution of this suit." The hearing focused on Hoefker's failure to attend the February 10 hearing. Elgohary's counsel presented Brett Shine, Hoefker's opposing counsel in the Brazoria County matter, and Shine's legal assistant, who both testified that on the afternoon of Friday, February 7, 2003, Shine sent Hoefker an e-mail agreeing to abate the Brazoria County lawsuit and pass the February 10 Brazoria County hearing. Elgohary's counsel also introduced into evidence an e-mail sent from Hoefker to Shine on the morning of February 9, 2003, stating that in reliance on Shine's representations, Hoefker would not attend the Brazoria County hearing. In his defense, Hoefker testified that, despite the agreement to abate the Brazoria County lawsuit and pass the Brazoria County hearing, he still intended to attend the Brazoria County hearing but was not able to do so because of a sensitive family matter. Hoefker apologized to the trial court and stated that he should have called the court about his failure to attend the February 10 hearing.
The trial court found that the notice of hearing faxed on February 6 was not timely because three days should have been added to the service period. Tex. R. Civ. P. 21a. However, the trial court found that the untimely notice did not excuse Hoefker's conduct. The trial court stated:
You do have to have three days and that was, in fact, the basis why the [c]ourt granted the new trial was because of the requirement of an additional three days. Although the [c]ourt was very distressed at the callousness with which the court's schedule had been dealt with by you, Mr. Hoefker, which you'll get an opportunity to address in a few moments and that you just deemed it appropriate to not show up as opposed to let the [c]ourt know that you had an objection to notice. But you can address that in your own time.
In support of his request for sanctions, Elgohary's counsel argued that Hoefker had still not provided adequate discovery responses, had disobeyed the trial court's December 5 order and instructions, and had lied to Elgohary and to the trial court regarding his whereabouts on February 10. Elgohary's counsel requested attorneys fees and costs and, in support of his request, testified that he was an attorney licensed in the State of Texas, that his fees totaled $8,750, that the fees he charged were necessary and reasonable, that his customary fee was $150 per hour, that he invested over 60.1 hours on the case, that he had made 11 appearances, and that there had been 22 pleadings filed in the case. The trial court orally granted the motion for sanctions, awarded attorneys' fees of $8,750, and fined Hoefker $1,000.
Before entering the written order, the trial court permitted the parties to review a proposed order. Hoefker filed numerous objections, and argued that the order did not accurately reflect that the motion for sanctions was brought exclusively under Texas Rule of Civil Procedure 215, that rule 215 did not allow fines, and that the award of sanctions was an abuse of discretion under rule 215. On March 14, 2003, the trial court held a hearing on the proposed order and on Hoefker's objections. At the hearing, the trial court stated that the "assessment of the attorney's fees was pursuant to [rule] 215" and that the attorneys fees award related to the "underlying transaction" and the "discovery abuses that occurred in this matter." The trial court further stated that the fine was being imposed pursuant to the court's finding that "the court had been misrepresented to as to what occurred on February 10th and the conduct that the court felt was important for the court's sanction as a consequence of that conduct."
In its written order entered March 14, 2003, the trial court granted Elgohary's motion for sanctions, awarded Elgohary $8,750 in attorney's fees, and imposed $1,000 in "court fines." The trial court further ordered that the $8,750 in "attorney's fees sanctions" were recoverable, jointly and severally, from Uhlemeyer, Hoefker, and Wilbanks Hoefker "for willfully disregarding this court's order to produce documents and answer [Elgohary's] interrogatories, failure to appear for a scheduled hearing, and [a] fine of $1,000 against Paul Hoefker only for misrepresenting facts to the court concerning the facts and circumstances surrounding Mr. Hoefker's whereabouts" on February 10, 2003. The trial court found that Hoefker's acts "defiled and defied the institution of the judiciary and the administration of justice which such acts occurred in the presence of the court." The order expressly stated that it was "based on Tex. R. Civ. P. 13, Tex. R. Civ. P. 215, Tex. R. Civ. P. 215(b)(3), Tex. Civ. Prac. Rem. Code § 10.001 et. seq., and the inherent powers invested in this court in order to protect the dignity, independence and integrity of the court system and aid in the administration of justice."
Elgohary and Uhlemeyer settled the lawsuit. The court entered a final judgment on June 19, 2003, expressly incorporating the March 14 order and restating the sanctions.
Standard of Review
We review a trial court's imposition of sanctions for an abuse of discretion. Koslow's v. Mackie, 796 S.W.2d 700, 704 (Tex. 1990); Zarsksy v. Zurich Mgmt., Inc., 829 S.W.2d 398, 399 (Tex.App.-Houston [14th Dist.] 1992, no writ). The test for abuse of discretion is whether the trial court acted without reference to any guiding rules and principles, or equivalently, whether under all the circumstances of the particular case the trial court's action was arbitrary or unreasonable. Koslow's, 796 S.W.2d at 704; Downer v. Aquamarine Operations, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
Sanctions
Texas Rule of Civil Procedure 13 provides that "[t]he signatures of attorneys or parties constitute a certificate by them that they have read the pleading, motion, or other paper; that to the best of their knowledge, information, and belief formed after reasonable inquiry the instrument is not groundless and brought in bad faith or groundless and brought for the purpose of harassment." Tex. R. Civ. P. 13. It further provides:
Attorneys or parties who . . . shall make statements in pleading which they know to be groundless and false, for the purpose of securing a delay of the trial of the cause, shall be held guilty of contempt. If a pleading, motion or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, after notice and hearing, shall impose an appropriate sanctions available under Rule 215-2b, upon the person who signed it, a represented party, or both.
No sanctions under this rule may be imposed except for good cause, the particulars of which must be stated in the sanction order.
Rule 215.1(d) provides that a court may order a party to pay reasonable expenses incurred by the moving party in obtaining a motion to compel, including attorneys fees. Tex. R. Civ. P. 215.1(d). Rule 215.2(b) provides that if a party fails to comply with proper discovery requests or to obey an order to provide or permit discovery, the court may, after notice and hearing, "make such orders in regard to the failure as are just." Tex. R. Civ. P. 215.2(b). Such orders include "an order charging all or any portion of the expenses of discovery or taxable court costs or both against the disobedient party or the attorney advising him," and an order to "pay . . . the reasonable expenses, including attorneys fees, caused by the failure. . . ." Tex. R. Civ. P. 215.2(b)(2), (8). Rule 215.3 provides that if a party is abusing the discovery process in resisting discovery or if a party's response to a request for production or answer to interrogatory is unreasonably frivolous or made for the purposes of delay, then a court may impose a number of sanctions, including those authorized under rule 215.2(b)(2) and 215.2(b)(8). Tex. R. Civ. P. 215.3.
Section 10.001 of the Texas Civil Practice and Remedies Code provides:
The signing of a pleading or motion as required by the Texas Rules of Civil Procedure constitutes a certificate by the signatory that to the signatory's best knowledge, information, and belief, formed after reasonable inquiry:
(1) the pleading or motion is not being presented for any improper purpose, including to harass or to cause unnecessary delay or needless increase in the cost of litigation;. . . .
Tex. Civ. Prac. Rem. Code Ann. § 10.001(1) (Vernon 2002). Upon a violation of section 10.001, a party may file a motion for sanctions, describing the conduct in violation of section 10.001, or the court may, on its own initiative, enter an order describing the specific conduct in violation of section 10.001 and explaining the basis for the sanction imposed. Tex. Civ. Prac. Rem. Code Ann. §§ 10.002(a)-(b); 10.005 (Vernon 2002). A court may award the reasonable expenses and attorneys fees incurred in presenting the motion. Tex. Civ. Prac. Rem. Code Ann. § 10.002(c) (Vernon 2002). Furthermore, if no due diligence is shown, a court may award to the prevailing party all costs for inconvenience, harassment, and out-of-pocket expenses incurred or caused by the subject litigation. Id. Additionally, a court may impose a sanction on a person who signs a pleading or motion in violation of section 10.001. Tex. Civ. Prac. Rem. Code Ann. § 10.004(a) (Vernon 2002). A sanction must be limited to what is sufficient to deter repetition of the conduct or comparable conduct by others similarly situated and may include an order to pay a penalty into the court and an order to pay the amount of the reasonable expenses, including attorneys fees, incurred due to the filing of the pleading or motion. Tex. Civ. Prac. Rem. Code Ann. §§ 10.004(b), (c)(2)-(3) (Vernon 2002).
Death Penalty Sanctions
In his first issue, Hoefker argues that the trial court erred in imposing "death penalty sanctions" because it "improperly bas[ed] them upon Rule 13, Tex. Civ. Prac. Rem. Code Section 10.001, et seq., and Rule 215." However, as noted above, the trial court, at the March 10, 2003 hearing, granted Uhlemeyer's motion for new trial, set aside the February 10 order and judgment, and reinstated Uhlemeyer's pleadings. This action rendered moot Hoefker's complaint concerning the death penalty sanctions imposed in the February 10 order.
We overrule Hoefker's first issue.
Attorneys Fees
In part of his second and third issues, Hoefker argues that the trial court erred in awarding Elgohary $8,750 in attorney's fees because "there is no legal or factual basis" to support the award.
We note, initially, that Elgohary contends that Hoefker failed to preserve this issue for our review. However, in his objections to the proposed order, Hoefker argued that the trial court abused its discretion in imposing the sanctions under rule 215. Additionally, in his response to the motion for sanctions, while Hoefker specifically argued against the imposition of death penalty sanctions, Hoefker generally argued that there must be a relationship between the conduct and the sanctions imposed. Thus, we hold that this issue was preserved for our review.
When a trial court finds that a party has failed to comply with proper discovery requests, obey discovery orders, or has otherwise abused the discovery process, the court is authorized to impose a sanction that is just under the circumstances. Tex. R. Civ. P. 215; In re Ford Motor Co., 988 S.W.2d 714, 718 (Tex. 1998); TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991); In re Supportkids, Inc., 124 S.W.3d 804, 807 (Tex.App.-Houston [1st Dist.] 2003, no pet.). When determining whether a sanction is just, we first consider whether there is a reasonable relationship between the abusive conduct and the sanction imposed. TransAmerican, 811 S.W.2d at 917 (stating that "the sanctions the trial court imposes must relate directly to the abuse found."). Second, we consider whether the sanction is excessive. TransAmerican, 811 S.W.2d at 917.
As stated in the trial court's order, the court awarded attorneys fees to Elgohary as a sanction for Hoefker's wilful disregard of the court's order to produce documents and answer Elgohary's interrogatories as well as Hoefker's failure to appear at a scheduled hearing. The trial court's findings are supported in the record. First, there is evidence indicating that Hoefker did not attend a noticed discovery hearing and that he made misrepresentations to the court about his failure to attend. Second, there is evidence that Hoefker did not adequately answer Elgohary's discovery requests and did not timely comply with the court's December 5 order to modify his answers to interrogatories and provide information. Thus, we hold that the trial court was authorized to impose a sanction under rule 215.
However, the amount of the attorneys fees sanction was not just because there was no reasonable relationship between the sanction imposed and Hoefker's conduct. See Hanley v. Hanley, 813 S.W.2d 511, 522 (Tex.App.-Dallas 1991, no writ) (stating that an award of attorneys fees shown to be in excess of what is reasonable and does not relate to the harm suffered as a result of the discovery abuse is unjust and not authorized by rule 215). The trial court awarded $8,750 based solely on Elgohary's counsel's testimony that his fees "totaled $8,750," he had invested over 60.1 hours in the case, he had made 11 appearances, and there had been 22 pleadings filed in the case. There was no testimony directly related to the amount of fees incurred due to Hoefker's discovery abuses. Rather, it appears that the trial court awarded Elgohary's counsel all the attorneys fees he expended in the case, including those unrelated to Hoefker's sanctionable conduct. Because there was no relationship between the sanctionable conduct and the award, we hold that the trial court abused its discretion in awarding $8,750 in attorneys fees.
Accordingly, we sustain Hoefker's second and third issues, in part, on the ground that the trial court abused its discretion in awarding $8,750 in attorneys fees. We overrule all other grounds asserted in Hoefker's second and third issues.
Fine
In his fourth issue, Hoefker argues that the trial court erred in assessing the $1,000 fine because "there is no legal or factual basis to support the award" and "a contempt fine cannot be made payable to a private litigant."
In its March 14 order and June 19 final judgment, the trial court found, among other things, that Hoefker made misrepresentations to the court concerning his whereabouts during the February 10 hearing. These misrepresentations were made in his motion for new trial and during the court hearing. Based on these findings, the court was authorized under Chapter 10 and rule 13 to sanction Hoefker by ordering him to pay a fine to the trial court. Tex. Civ. Prac. Rem. Code Ann. §§ 10.001, 10.004(b)(2); Tex. R. Civ. P. 13.
Here, the trial court adequately described the particular conduct that violated section 10.001 and rule 13 and explained the basis for the fine. The order expressly stated that the fine was being imposed based on Hoefker's conduct, including his misrepresentations to the court, which "defiled and defied the institution of the judiciary and the administration of justice." During the hearings, the court further stated that Hoefker had treated the court callously and emphasized that Hoefker had made misrepresentations to the court concerning his whereabouts during a court proceeding. As its authority for imposing the fine, the trial court cited Chapter 10, rules 13 and 215, and the court's "inherent powers."
Also, the amount of the fine imposed was reasonable and within the boundaries set forth in Chapter 10, which limits a sanction to what is sufficient to deter repetition of the conduct or comparable conduct. Hoefker made misrepresentations to opposing counsel and to the trial court to avoid attending a noticed discovery hearing, causing delay in the case and in the court's schedule. The trial court found that Hoefker treated the court, and specifically the court's schedule, with callous disregard. We hold that the $1,000 fine imposed against Hoefker was not excessive and that the trial court did not abuse its discretion in imposing the fine.
Finally, in regard to Hoefker's assertion that "a contempt fine cannot be made payable to a private litigant," the order in question compels payment of the fine to the court, and, more significantly, Elgohary concedes that the fine is payable to the court and not to him.
We overrule Hoefker's fourth issue.
Conclusion
We reverse the portion of the trial court's judgment awarding Elgohary attorneys fees in the amount of $8,750, and remand for a determination of an attorneys fees sanction consistent with the rules and this opinion. We affirm the judgment in all other respects, including the fine imposed against Hoefker.